Beatty and Mackie v. Kozak

Beatty and Mackie v. Kozak
Collection
Supreme Court Judgments
Date
1958-01-28
Report
[1958] SCR 177
Judges
Kerwin, Patrick; Rand, Ivan Cleveland; Locke, Charles Holland; Cartwright, John Robert; Abbott, Douglas Charles
On appeal from
Saskatchewan
Subjects
Civil law
Criminal law
Decision Content
Supreme Court of Canada
Beatty and Mackie v. Kozak, [1958] S.C.R. 177
Date: 1958-01-28
E. A. Beatty And J. Mackie (Defendants) Appellants;
and
Doris M. Kozak (Plaintiff) Respondent.
1957: October 21, 22, 23; 1958: January 28.
Present: Kerwin C.J. and Rand, Locke, Cartwright and Abbott JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.
False imprisonment—Special statutory definitions and limitations—The Mental Hygiene Act, R.S.S. 1953, c. 309, ss. 15, 61, 64.
Mental diseases—Apprehension without warrant—Justification for acts of police officers—Whether person "apparently" mentally ill and behaving in disorderly manner—Bona fide belief—The Mental Hygiene Act, R.S.S. 1953, c. 309, ss. 2(8), (11), (14), 15, 61, 61.
The plaintiff was apprehended by two police officers in purported compliance with s. 15 of The Mental Hygiene Act. She was kept in custody and subsequently sent to a mental hospital, from which she was discharged after 44 days. She brought an action claiming, inter alia, damages for false imprisonment, from the deputy chief constable who had directed her apprehension, and a police matron who took part in the arrest. The defendants pleaded the provisions of the statute, and particularly ss. 15, 61 and 64.
Held (Rand J. dissenting) : Both defendants were liable in damages.
Per Kerwin C.J.: To justify the apprehension of a person without warrant under s. 15 of the Act, two conditions must be satisfied: (1) the person must be "apparently" mentally ill or mentally defective, as defined in the statute, and (2) he must be conducting himself in a manner which, in a normal person, would be disorderly. Whether or not it could be said that it was apparent to the appellants that the plaintiff was mentally ill, it was clear on the evidence that she was not acting in a disorderly manner at the time of her apprehension, since she was at her own office going about her business. It was true that s. 61 of the Act barred an action against a person acting under the authority of s. 15, but only if that person had acted in good faith and with reasonable care. It might be said, in this case, that the defendants had acted in good faith but it could not be said, on the evidence, that they had acted with reasonable care. Section 61 was, therefore, inapplicable.
Per Locke, Cartwright and Abbott JJ.: The apprehension of the plaintiff without a warrant was not authorized under s. 15, which envisaged, as a condition of its application, something in the nature of an emergency. This being the case, it could not be said that the acts of the defendants were "done under the authority of" or "done in pursuance of" s. 15, even if those words were interpreted as equivalent to "intended to be done under the authority of" and "done in intended pursuance of". Lightwood, The Time Limit on Actions, p. 393, quoted with approval. It was obvious that neither of the defendants had a bona fide belief in facts which, if they had existed, would have afforded a justification under s. 15, nor was there anything on which they could reasonably found the belief that in fact the conditions prescribed by that section existed. Therefore neither s. 61 nor s. 64 of the Act afforded any defence to the defendants.
Per Rand J., dissenting: Section 61 of the Act was of the widest scope in the justification it furnished and expressly mentioned acts done under s. 15; its application should not be limited to acts that were justified under that section. Considering the object of the statute, the extent to which lay persons might become involved, and the safeguards mentioned, the restricted interpretation given by the Courts below to s. 64 failed to take into account the basic principle underlying the special conditions of bringing action. Section 64 accordingly applied to bar the action because of the lapse of time before its institution.
APPEAL from a judgment of the Court of Appeal for Saskatchewan1, reversing a judgment of Doiron J.2 Appeal dismissed, Rand J. dissenting.
J. E. MacDermid, Q.C., for the defendants, appellants.
Walter Tucker, Q.C., and (Miss) Shirley J. Tucker, for the respondent.
The Chief Justice:—The appellant Mackie was deputy-chief constable of Saskatoon and the appellant Mrs. Beatty was a police matron. On June 16, 1953, two Saskatoon police officers, whose names the respondent was unable to obtain, accompanied by Mrs. Beatty, took the respondent from her office in Saskatoon to the psychiatric ward of the Saskatoon Hospital where she was examined by two doctors on June 17 and 18 and then transferred to the Provincial Mental Hospital in North Battleford. There she was examined by two experts in mental illness and received treatment, but at the end of 44 days she was discharged. Two actions brought by the respondent were tried together by Doiron J. and dismissed3. We are not concerned with the other action, but only with the present one and that as against the two appellants for damages for false arrest.
The Court of Appeal for Saskatchewan4 allowed the plaintiff's appeal and directed judgment to be entered against Mackie for $1,000 and against Mrs. Beatty for $100. The five members of that Court were in agreement as to Mackie, but McNiven J.A. would have dismissed the action against Mrs. Beatty. There can be no question as to the liability of Mackie, as admittedly he directed the arrest of the respondent, unless he is saved by the provisions of The Mental Hygiene Act, 1950 (Sask.), c. 74 (now R.S.S. 1953, c. 309). While Mrs. Beatty was attached as matron to the Royal Canadian Mounted Police, she admitted in her examination for discovery, put in at the trial, that from time to time and on June 16, 1953, she was employed by the Saskatoon police. She knew that the respondent was to be "picked up"; she accompanied the officers who identified themselves as such to the respondent, and I agree with the majority of the Court of Appeal that what she did was sufficient to make her a party to the arrest and therefore liable in damages unless she also is protected under the statute.
Section 2 of that Act contains the following definitions:
8. "institution" includes a mental hospital and a school for mental defectives;
11. "mental defective" or "mentally defective person" means a person in whom there is a condition of arrested or incomplete development of mind whether arising from inherent causes or induced by disease or injury, and who requires care, supervision and control for his own protection or welfare or for the protection of others; 14. "mentally ill person" means a person other than a mental defective who is suffering from such a disorder of mind that he requires care, supervision and control for his own protection or welfare or for the protection of others;
Section 11 provides for admission to an institution in various ways, such as by the certificates of two physicians or on the warrant of the Lieutenant Governor in Council. Section 15 then provides an alternative method of apprehension:
15. Any person, apparently mentally ill or mentally defective and conducting himself in a manner which in a normal person would be disorderly, may be apprehended without warrant by any constable or peace officer and detained until the question of his mental condition is determined under section 12.
Sections 61 and 64 enact:
61 [as amended by 1951, c. 74, s. 5]. No person who lays an information under this Act, or who signs a certificate or does any act to cause a certificate to be signed under the provisions of section 12 or 44, or who otherwise acts under the authority of section 12, 15 or 44 or who commits any person to safe custody upon the ground that such person is mentally ill or mentally defective or who signs or carries out or does any act with a view to signing or carrying out an order purporting to be an order for the removal of any person to an institution, shall be liable to civil proceedings whether on the ground of want of jurisdiction or on any other ground if the person so acting has acted in good faith and with reasonable care.
64. All actions, prosecutions and other proceedings against any person for anything done or omitted to be done in pursuance of this Act shall be commenced within six months after the act or omission complained of has been committed, and not afterwards.
Under s. 15 two things are required before a person may be apprehended without warrant:
(1) Such person must be apparently mentally ill or mentally defective; and
(2) He must be conducting himself in a manner which in a normal person would be disorderly.
Whether or not it could be said that it was apparent to the appellants that the respondent was mentally ill, the evidence is clear that she was not acting in a disorderly manner as she was at her own office going about her business.
It is quite true that s. 61, when applicable, performs its function so as to bar an action against a person who acts under the authority of s. 15, whether on the ground of want of jurisdiction or on any other ground; but only if such person has acted (1) in good faith and (2) with reasonable care. It is difficult to envisage how "want of jurisdiction" could apply to the appellants in the circumstances of this case, but, however that may be, I find it impossible to say that, even if they acted in good faith, they also acted with reasonable care.
The evidence is detailed elsewhere. There is no doubt that Mackie had received complaints from time to time from the respondent's sister, Mrs. McWilliams, and the latter's husband, to the effect that the respondent was annoying them and others and undoubtedly these two told Mackie that they considered her mentally ill. It is beyond question that she had been drinking, but it is also clear that during the eight or nine days preceding June 16, 1953, there was no evidence that she had acted in a disorderly manner. The evidence that Mrs. McWilliams went to see the police magistrate, who took her to see Mackie and pointed out to him s. 15 and told Mackie that he did not need a warrant, does not justify the stringent action of attempting to proceed under the provisions of that section when the respondent was not disorderly in any sense on June 16, 1953, and had not been for some time. Nor does the fact that Mr. McWilliams furnished Mackie on June 13, 1953, with his own affidavit that in his opinion the respondent was mentally ill and was conducting herself in a manner which in a normal person would be disorderly bring the appellants within the protection of s. 61. The appellants did not act with reasonable care.
Section 64 may be compared with s. 2 of The Public Officers' Protection Act, R.S.S. 1953, c. 17, the relevant part of which reads as follows :
2. (1) No action, prosecution, or other proceeding shall lie or be instituted against any person for an act done in pursuance or execution or intended execution of any statute, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such statute, duty or authority, unless it is commenced …
This wording follows s. 1 of The Public Authorities Protection Act, 1893 (Imp.), c. 61, and is the same as corresponding provisions in some of the other Provinces of Canada. For the reasons stated at p. 392 of Lightwood's The Time Limit on Actions (1909), I agree that the fuller form on which the words of the 1893 Act are based is no more efficacious than the original short form "in pursuance of the Act", as that was interpreted by the Courts. Many of the cases cited by counsel for the appellants and which, we were advised, were not brought to the attention of the Courts below, are referred to in the text-book and, after a consideration of all of them, I agree with the author's conclusion, at p. 393, that:
The necessary check upon the defendant's assumption of statutory power was finally found in the requirement that he should have a bona fide belief in facts which, if they had existed, would have afforded a justification under the statute.
In the present case I find it impossible to say that the appellants thought for a moment that the respondent was acting in a manner which in a normal person would be disorderly. On the contrary, they knew that at least that prerequisite for the application of s. 15 did not exist and therefore there was not any belief in facts which, if they had existed, would have afforded a justification.
Although possibly it might have been argued that the $100 awarded against Mrs. Beatty was part of the $1,000 awarded against Mackie, no such question was raised and therefore nothing is said about it. The appeal should be dismissed with costs, including the costs of the motion for leave to appeal.
Rand J. (dissenting) :—This appeal hinges on the application to the facts of s. 64 of The Mental Hygiene Act of Saskatchewan, now R.S.S. 1953, c. 309:
All actions, prosecutions and other proceedings against any person for anything done or omitted to be done in pursuance of this Act shall be commenced within six months after the act or omission complained of has been committed, and not afterwards.
The action was brought for false imprisonment arising out of the following circumstances: The respondent was apprehended and taken to a hospital for examination by the appellants, members of the police force of Saskatoon, purporting to act under the provisions of s. 15 of the Act:
Any person, apparently mentally ill or mentally defective and conducting himself in a manner which in a normal person would be disorderly, may be apprehended without warrant by any constable or peace officer and detained until the question of his mental condition is determined under section 12.
They were acting in good faith and believed on reasonable grounds that the respondent was a person mentally ill who had been leading a life of recurrent disorderliness. The information on which they acted was furnished by the respondent's sister who had made a complaint to a magistrate and with the magistrate had gone to police headquarters. On the discussion there the magistrate gave his opinion that on the facts s. 15 authorized the officers to proceed to apprehend her. After a delay of three or four days, awaiting an available room in the hospital, she was taken and kept there for about 40 days and then discharged. In the opinion of the superintendent, on admittance she was suffering from mental illness aggravated by alcoholic indulgence, and on discharge she was a border-line case in which the risks of giving her liberty were about in balance with the considerations in favour of freedom, a situation which called for her release. The evidence clearly established a pattern of behaviour extending over a period of eight or nine months exhibiting itself in bouts of excessive drinking, disorderly conduct seriously disturbing neighbours in nearby apartments, making annoying use of the telephone, and threats of injury to herself and her brother-in-law. The officers believed that they were authorized to take her into custody by s. 15, that in acting as they did they were exercising power vested in them by that section.
At the trial Doiron J. held that the section did authorize what was done. On appeal the language was interpreted as applying only to occasions on which a peace officer should come upon a person apparently mentally ill and then and there acting in a disorderly manner. On that view it was held that the apprehension was not made "in pursuance of this Act"; and that s. 61, which provides justification for acts done "under the authority of section … 15", did not apply. The action was maintained for damages of $1,000 against Mackie and $100 against Beatty, and the question is whether the Court was right in holding that s. 64 could not be invoked.
The scope of the expressions "in pursuance of", "pursuant to", "in the execution of", and others of like import, in each case with the qualification of the word "intended"—all of which are now to be treated as having the same signification —has been the subject of a great deal of judicial effort to reach a rule that would fit all cases; but as is virtually inevitable in such pursuits, that object has proved to be illusory. In a series of decisions in the early years of the 19th century the interpretation tended to put the good faith of the public authority in acting in his official capacity as the test; then the "reasonableness" of that faith became a question; and this was followed by modifications based upon mistake in matters of fact as well as in those of law. A reference to a number of them seems desirable.
In Morgan v. Palmer5, a fee was exacted by a mayor from a publican upon renewing his licence. In an action to recover the amount back it was held that as no fee was legally collectable the taking could not be said to have been done under colour of authority, and the defendant was not entitled to notice of action. Three years later Cook v. Leonard et al.6 applied the same test. Bayley J. used this language :
[The words] extend to all acts done bona fide which may reasonably be supposed to be done in pursuance of the Act. But where there is no colour for supposing that the act done is authorized, then notice of action is not necessary.
Wright v. Wales7 followed. There it was held that a person spreading beach and shingle by order of the magistrates but not doing malicious injury, was not liable to arrest; but as he had exhibited no warrant for what he was doing, the defendant as a reeve of the parish and in charge of the land could not be said to have had no colour for supposing he ought to arrest him. In the language of Park J., "if he made a mistake when he had reason to suppose he was acting in pursuance of the statute, he was entitled to the protection given". In Hopkins v. Crowe8, where a son of the owner of a horse that had been ill-used gave the party in charge, whereas the statute enabled only the owner to do that, clearly excluding the son, the latter was held not entitled to notice. In Rudd v. Scott9, an owner of a house had given in charge the plaintiff, employed by a tenant to execute repairs, for pulling down and stealing part of the materials of the house; and in the language of Tindal C.J. the Court could not say that the course pursued by the owner was so wide of the mark that he could not have been acting bona fide in the belief that the statute justified it. These were followed by Read v. Coker10, in which the defendant, being entitled to give into custody a person found committing the offence, was held entitled to notice if "he bona fide believed that he was acting in pursuance of the statute", though, as in the present case, the plaintiff was taken, not in the act of "committing" but some hours afterwards. Maule J. used this language :
The case of Booth v. Clive [(1851), 10 C.B. 827] decides that a party is entitled to notice of action provided he has acted bona fide in the belief that he is pursuing the statute even though there may be no reasonable foundation for such belief. Where the question is whether a man has acted bona fide, the reasonableness of the ground of belief may be fit to be considered …
But as Williams J. in Cann v. Clipperton11 said:
It would be wild work if a party might give himself protection by merely saying that he believed himself acting in pursuance of a statute. … The case to which they [protecting clauses] refer must lie between a mere foolish imagination and a perfect observance of the statute.
Hermann v. Seneschal12, lays down the test of a bona fide belief in the existence of a state of fact which, had it existed, would have justified the action taken. This, in Roberts v. Orchard13, was extended to a belief by the defendant that the plaintiff was "found committing", as in Read v. Coker, supra, the pertinency of which to the case before us is obvious. In Heath v. Brewer14, a. cab proprietor, instead of summoning one of his drivers under the statute, defaced the latter's licence by writing on it that he had been dismissed for damaging the cab and bringing home no money. Erle C.J. remarked: "The defendant could not honestly believe that he was a magistrate, or that he could be justified in acting as judge in his own case."
The test of Hermann v. Seneschal will meet many if not most of the cases arising, but, as the history of the rule shows, we cannot rule out all mistakes in interpreting the statute, and sooner or later special circumstances will be met which, if injustice is to be avoided, will call for a modification. That was exemplified in Burns v. Nowell15, which held that it was sufficient if the person acting believed that facts existed which in his honest and reasonable belief would in law justify what he had done. There a naval officer seized a vessel, believing that an offence had been committed under the Kidnapping Act of 1872, 35 & 36 Vict., c. 19. The statute authorized the detention of any vessel "suspected upon reasonable grounds" of an offence. The circumstances which the officer believed to exist did not, assuming them to exist, amount to an offence, although it was his belief that they would. In the language of Baggallay L.J., at p. 451:
… an officer should be considered to have had reasonable grounds for suspicion, if at the time of the seizure, he reasonably believed in the existence of a state of circumstances which, in his honestly formed opinion, amounted to the commission of an offence under the Act.
This harks back to the earlier requirement of some colour of belief that the act was authorized by the statute, as in Hazeldine v. Grove16. There the defendant, as police magistrate, in a matter brought before him over which he had no jurisdiction, had disbelieved the evidence given by the plaintiff as a witness and had detained him until after the case was disposed of, as beyond his jurisdiction, when, without a charge having been made, he informed the plaintiff that he would be committed unless he found bail to appear on a stated day. The bail was immediately furnished and the plaintiff discharged. The statute under which the defendant acted gave him authority to take preliminary proceedings "on charges of misdemeanour" and, with no charge before him, the proceedings were illegal. At p. 795 (E.R.) Lord Denman C.J., giving the judgment of the Court, said:
That principle seems to be this: that, where the magistrate, with some colour of reason, and bona fide, believes that he is acting in pursuance of his lawful authority, he is entitled to protection, although he . may proceed illegally, or exceed his jurisdiction. Whether he acts with such colour of reason, and bonâ fide, are questions for the jury . . . .
It is true that no direct charge or information had been laid before the defendant when he first caused the plaintiff to be removed into another room; and he may have exceeded his authority in so doing; but there is ample ground for believing that he thought he might himself institute the proceeding when the offence had been committed in his presence; and all his subsequent conduct flowed from this. …
There was a fault in the commencement, which made the whole proceedings illegal: but these statutory protections suppose an illegality, so that there is no defence on the merits. The importance of Burns v. Nowell lies in the recognition that no hard and fast rule is sufficient, and that the circumstances must issue in a result that will reasonably execute the policy underlying the protective provision. In G. Scammell and Nephew, Limited v. Hurley et al.17, Scrutton L.J. says:
When defendants are found purporting to execute a statute, the burden of proof in my opinion is on the plaintiffs to prove the existence of the dishonest motives above described and the absence of any honest desire to execute the statute, and such existence and absence should only be found on strong and cogent evidence.
Here is an Act dealing with situations that not infrequently arise and in which the action to be taken calls essentially and primarily for good faith and reasonable grounds. Section 61 is of the widest scope in the justification it furnishes when those conditions have been satisfied. In it acts done under s. 15 are expressly mentioned but the Court of Appeal has apparently limited its application to those that are justified, for which the inclusion would seem to be quite unnecessary. Considering the objects of the statute, the extent to which lay persons may become involved, and the safeguards mentioned, the restricted interpretation given s. 64 fails to take into account the basic principle underlying these special conditions of bringing action; and we were told by Mr. MacDermid that none of the authorities mentioned was brought to the Court's attention.
The special circumstance here is that s. 15, on its face, is certainly not obvious in meaning. It was read by a magistrate to extend to apparent mental illness accompanied by a record of past persistent disorderly conduct, and not to be confined to those conditions as they appear to a peace officer when about to take into custody. The same view was taken by Doiron J., who thought the limitation urged too narrow. When a statutory provision to be acted upon by a peace officer lends itself to such an erroneous interpretation, to require him to act at the risk of being found to be wrong only after the question has been deliberated on by a superior appeal tribunal would frustrate the intended administration of the statute and would be contrary to the principle of the rulings from the beginning. In Norris v. Smith18, Williams J, says :
The question is, not whether the defendant and the trustees were strictly justified by the provisions of the statute, but whether there was a semblance of acting under it.
In Selmes v. Judge et al.19, surveyors of highways illegally demanding a highway rate under a repealed statute were held to be entitled to notice. Blackburn J. said :
… it is clear that the defendants intended to act according to the duties of their office as surveyors … it was the duty of the defendants to collect highway rates, and they intended to act in pursuance of the statute…
There was not a semblance of statutory authority for what was done and, whether or not the ruling would be followed to-day, it bears the authority of a great judge. It is significant that in the Act before us s. 61 provides its justification even when the ground of liability is a want of jurisdiction.
The circumstances here are in sharp distinction from those in Chaput v. Romain et al.20 The reasons of Kellock J. were relied upon by Mr. Tucker. But the offending act of Chaput was presumably some common law offence for a belief in the existence of which there was not a particle of foundation; and the act of the officers in breaking up the religious service with no justification or excuse was itself an offence. There was no statute and no colour of acting under their common law duty; every fact was known and any other result would have left it to them to believe and act upon any set of facts which they might imagine to constitute an offence.
It should be emphasized that s. 64 assumes that the persons entitled to its benefit have been guilty of an illegal act for which they must answer, and the requirement is only that proceedings against them be taken within a certain period; and it is necessary to guard oneself against unconsciously allowing this to become associated with the idea of a justification for the act done, which it is not.
I would, therefore, allow the appeal and restore the judgment at trial. Following the terms on which leave to appeal was granted, the appellants must pay the party-and-party costs of the application for leave and of the appeal in this Court. For the reason that the responsible officials of the City refused to disclose to the respondent the names of those who were concerned in the apprehension there should be no costs in either the Court of Appeal or the trial Court.
The judgment of Locke, Cartwright and Abbott JJ. was delivered by
Cartwright J.:—This is an appeal, brought pursuant to special leave granted by this Court, from a judgment of the Court of Appeal for Saskatchewan21, allowing an appeal from a judgment of Doiron J.22 and directing that judgment be entered in favour of the respondent against the appellant Mackie for $1,000 damages and against the appellant Beatty for $100.
While at the trial other parties and matters were before the Court, we are now concerned only with the claim of the respondent against the appellants for damages for false imprisonment.
The relevant facts are set out in the reasons for judgment in the Courts below and it is not necessary to repeat them in detail.
The appellant Mackie was at all relevant times deputy chief constable of the City of Saskatoon. On the morning of June 16, 1953, two police officers, whose names are unknown to the respondent but who were admittedly acting on the instructions of the appellant Mackie, arrested the respondent. They were accompanied by the appellant Mrs. Beatty, who is also a police officer, and a question arises as to whether she took part in the arrest. At the time of the arrest the respondent was in her office in the city of Saskatoon and behaving in a normal manner.
The appellant Mackie had from time to time received complaints from the respondent's sister and brother-in-law to the effect that the respondent was drinking excessively, was acting in a disorderly manner, was annoying them and others by repeated telephone-calls and appeared to be mentally ill. It is clear from the evidence, and is indeed admitted, that the respondent had not acted in a disorderly manner during the nine days preceding her arrest and was not showing any signs of mental illness or defect at the time she was apprehended. The defence of the appellants was based on the provisions of The Mental Hygiene Act, 1950 (Sask.), c. 74, as amended, and particularly ss. 15, 61 and 64 which read as follows:
15. Any person, apparently mentally ill or mentally defective and conducting himself in a manner which in a normal person would be disorderly, may be apprehended without warrant by any constable or peace officer and detained until the question of his mental condition is determined under section 12.
61 [as amended by 1951, c. 74, s. 5]. No person who lays an information under this Act, or who signs a certificate or does any act to cause a certificate to be signed under the provision of section 12 or 44, or who otherwise acts under the authority of section 12, 16 or 44 or who commits any person to safe custody upon the ground that such person is mentally ill or mentally defective or who signs or carries out or does any act with a view to signing or carrying out an order purporting to foe an order for the removal of any person to an institution, shall be liable to civil proceedings whether on the ground of want of jurisdiction or on any other ground if the person so acting has acted in good faith and with reasonable care.
64. All actions, prosecutions and other proceedings against any person for anything done or omitted to be done in pursuance of this Act shall be commenced within six months after the act or omission complained of has been committed, and not afterwards.
It was argued, (i) that the arrest of the respondent was authorized by s. 15, (ii) that if it was not authorized the appellants were none the less acting under the authority of s. 15 in good faith and with reasonable care, and so were relieved from liability by s. 61, and (iii) that what they did was done in pursuance of s. 15 and that the action was barred by s. 64 as admittedly it was not commenced until more than six months after the act complained of had been committed.
As to the first of these arguments, for the reasons given by Gordon J.A., concurred in on this point by all the other members of the Court of Appeal, I agree with his construction of s. 15 and with his conclusion that its terms did not authorize the apprehension of the respondent without a warrant. I wish to add only a few brief observations as to the meaning and apparent purpose of that section. Read, as it must be, in the context of the whole Act, it appears to me to envisage as the condition of its application something in the nature of an emergency. The Act contains ample provision for the apprehension and admission to an institution by due process of law of persons who are, or are suspected of being, mentally ill or mentally defective; see, for example, ss. 11, 12 and 17. Section 15, on the other hand, gives to any constable or peace officer the power to apprehend and detain a person without warrant if two conditions coexist. These are (i) that the person is apparently "mentally ill" or "mentally defective", each of which terms by reason of cls. 11 and 14 of s. 2 denotes such a condition that the person requires care, supervision and control for his own protection or welfare or for the protection of others, and (ii) that the person is conducting himself in a manner which in a normal person would be disorderly. The coexistence of these conditions might well bring about a situation in which any delay in placing the person concerned under restraint would be fraught with danger. To hold that a statutory provision which authorizes an interference with the liberty of the subject, provided two conditions exist, could extend to a case in which neither exists would be contrary to the well-established rule of construction referred to by Gordon J.A.
The second and third of the arguments mentioned above may conveniently be dealt with together, as neither can avail the appellants unless the arrest of the respondent can be said to have been an act "done under the authority of" or "in pursuance of" s. 15. For the purposes of this branch of the matter I am prepared to accept Mr. MacDermid's submission that the words quoted are equivalent to "intended to be done under the authority of" and "done in intended pursuance of". English statutory provisions couched in similar terms have been dealt with in many decisions. After examining a number of these and tracing the development of the jurisprudence on the subject, the learned author of Lightwood's The Time Limit on Actions (1909) says at p. 393:
The necessary check upon the defendant's assumption of statutory power was finally found in the requirement that he should have a bona fide belief in facts which, if they had existed, would have afforded a justification under the statute. This test, first formulated in Hermann v. Seneschal (1862), 13 C.B.N.S.392, was repeated in Roberts v. Orchard (1863), 2 H. & C. 769, and was adopted as a practical solution of the difficulty: see Heath v. Brewer (1864), 15 C.B.N.S.803; Chambers v. Reid (1866), 13 L.T.703; Downing v. Capel (1867), L.R.2 C.P.461. After an apparent reversion to the requirement of reasonable belief in Leete v. Hart (1868), L.R. 3 C.P.322, the new test was re-affirmed by Willes, J., in Chamberlain v. King (1871), L.R. 6 O.P. 474; see also Griffith v. Taylor (1876), 2 C.P.D.194,C.A.; and it has not since been doubted. It is true that in Selmes v. Judge et al.23, Blackburn J. said at p. 728:
Neither in Hermann v. Seneschal nor in Roberts v. Orchard was it decided that a defendant would not be entitled to notice of action, because he had been mistaken in the law …
but in that case the defendants were public officers carrying out a purpose authorized by statute and their error was a failure to act strictly in accordance with the statute. The statute did empower them to levy and collect a rate, and the judgment of Blackburn J. proceeds on the view stated by him, at pp. 727-8, as follows:
The only illegal act done by the defendants was to make an informal rate; they proceeded to collect it, and received from the plaintiff the amount assessed upon him; in these transactions it is clear that the defendants intended to act acording to the duties of their office as surveyors, although they mistook the legal mode of carrying out their intention.
In my opinion the passage from Lightwood quoted above is a correct statement of the general rule and sets out the test to be applied in the case at bar. Cases may arise in which special circumstances complicate the application of the rule and in which the statutory protection may extend to a defendant who has proceeded partly on a bona fide mistake as to the facts and partly on an erroneous view of the law; see, e.g., Cann v. Clipperton, infra; but I find it difficult to suppose a case in which a defendant who was perfectly acquainted with all the facts would be protected merely because he entertained a mistaken opinion as to the law, and I am satisfied that there is nothing in the facts of the case at bar to remove it from the operation of the general rule.
In Cann v. Clipperton24, a case to which my brother Kellock referred with approval in Chaput v. Romain et al.25, the defendant had caused a policeman to arrest the appellant on a charge of doing malicious injury to property contrary to 7 & 8 Geo. IV, c. 30 ; the arrest without warrant was justified only if the party arrested was found committing the offence; the jury decided that when taken into custody the plaintiff was not found committing any offence against the Act; it was argued for the plaintiff that the defendant, who was a solicitor, was acting under the mistaken view of the law, that the situation was covered by another statute under which the offender could be arrested without warrant if he had actually committed the offence although he was not found committing it, and that therefore the defendant was not entitled to notice of action. In giving judgment Lord Denman C.J. said at p. 588:
The defendant seems not merely to have had that impression which was suggested, as to the law, but to have thought that the mischief was actually going on at the time. Else I am unwilling to say that, if a party acts bona fide as in execution of a statute, he is justified at all events, merely because he thinks he is doing what the statute authorises, if he has not some ground in reason to connect his own act with the statutory provision. The doctrine attributed to Bayley J. goes too far. But here the defendant might reasonably think that, in point of fact, the circumstances were those to which the protection of stat. 7 & 8 G. 4 c. 30 s. 41 attaches. The rule for a nonsuit must therefore be absolute.
The reference to the doctrine attributed to Bayley J. appears to be to the judgment of that learned judge in Cook v. Leonard et al.26, and particularly the following passage, at pp. 355-6:
These cases fall within the general rule applicable to this subject, viz. that where an Act of Parliament requires notice before action brought in respect of any thing done in pursuance or in execution of its provisions, those latter words are not confined to acts done strictly in pursuance of the Act of Parliament, but extend to all acts done bona fide which may reasonably be supposed to be done in pursuance of the Act. But where there is no colour for supposing that the act done is authorized, then notice of action is not necessary.
In Burns v. Nowell27, the officer who seized the schooner "Aurora" knew of facts (i.e., that she was carrying native labourers of the South Sea Islands not being part of the crew and had no licence to do so) which would have been a good cause for her arrest but for the circumstance, which appears to have been unknown to him at the time of seizure that she had sailed prior to the date of the Kidnapping Act, 1872, c. 19, coming into force. Baggallay L.J., who delivered the unanimous judgment of the Court, appears to hav